Authored By: Stephen McKenney and Kenneth Neuman Many Michigan litigators have been met with this roadblock: “Not until the court decides by motion.” Discovery is ongoing, and your opposing counsel believes their pending motion for summary disposition – in which the court is permitted to consider evidence outside the pleadings – will dispose of the case. But where...
Authored By: Matt Smith and Dave Mollicone On January 1, 2022, the Michigan Supreme Court’s amendments to the long-standing case evaluation rule, MCR 2.403, took effect. Most notable among them is the elimination of sanctions against a rejecting party. But unclear is the timing of the amended rule’s application to cases filed, ordered, or evaluated relative to the effective date of...
Authored By: Matthew Smith and Jennifer Grieco Referral and fee-sharing agreements between attorneys are nothing new. When presented with a matter outside of an attorney’s practice, public policy supports referring the client to an attorney with specialized knowledge in that area of law. In such instances, Michigan Rule of Professional Conduct 1.5(e) allows the specialist and...
Authored By: Jennifer Cupples and David Mollicone The threshold question of whether a dispute is subject to arbitration is generally a matter for a court to determine by considering the reach of the parties’ agreement. In a recent opinion by Justice Cavanagh, joined by Chief Justice McCormack and Justices Bernstein and Clement, the Michigan Supreme Court in Lichon v Michael Morse, et...
Authored By: Matthew Smith and Kenneth Neuman Shareholder and member oppression claims are commonly referred to as “minority” oppression claims. This labeling is so prevalent that it has found its way into opinions authored by both the Michigan Supreme Court and Michigan Court of Appeals. (For example, see Madugula v. Taub, 496 Mich. 685, 695 (2014); Franchino v. Franchino, 263 Mich....
Authored By: Jennifer Cupples and Jennifer Grieco Threshold issues of arbitrability are generally resolved by a court determining whether the parties agreed to arbitrate the dispute. However, with contracts evidencing a transaction involving commerce, the Federal Arbitration Act, Title 9, U.S. Code (“FAA”) allows parties to agree that the arbitrator determine questions of...
Authored by: Stephen T. McKenney The Michigan Limited Liability Company Act will celebrate its twenty-eighth anniversary on June 1, 2021. But despite its age and popularity, the Michigan Court Rules have never expressly provided the manner in which limited liability companies are to be served with legal process. This will change effective May 1, 2021, with the Michigan Supreme Court’s...
Authored By: Matthew Smith and Stephen McKenney Choice of law and forum-selection provisions are common inclusions in all manner of contracts. Most of these provisions rarely register a second thought even in contentious litigation. But what happens when the enforceability of a forum-selection clause differs under the laws of the State in which litigation is filed, from the laws of the...
Authored By: Jennifer Cupples and Jennifer Grieco Michigan attorneys should already know that Michigan Rule of Professional Conduct (“MRPC”) 1.8(h)(1) prohibits a lawyer from making an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement. But what, if any, effect...
Authored By: Kenneth Neuman and Matthew Smith That Sixth Circuit law favors arbitration is not newsworthy. A string of cases could be unearthed with just a few minutes of research in which federal courts throughout the Sixth Circuit have echoed the strong presumption in favor of arbitration. But there are limits to the presumptions that tilt in favor of arbitration when its...
